Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination

Abstract

One in five Americans has a criminal record. When seeking employment, these individuals may find that employers tend to prefer those without criminal histories, making honest employment a challenge at best. At the same time, there is widespread agreement among experts that employment of ex-offenders can significantly reduce recidivism rates, which are distressingly high. Two-thirds of those released from prison are expected to be re-arrested within three years of their release. Despite these facts, there is no comprehensive federal legislation addressing employment discrimination against ex-offenders. States and even cities have recognized the import of this issue and begun to enact laws aimed at reducing discrimination and thereby promoting employment of ex-offenders. Unfortunately, the extent of protection available under these laws varies dramatically from state to state and city to city, with a few states providing moderately employee-favorable legislation and the remaining majority providing either little protection or virtually no protection at all. This article surveys recent cases in which an adverse employment action was based on an employee or applicant's criminal convictions. The various formulations of anti-discrimination legislation adopted by Hawaii, Wisconsin, Pennsylvania, and New York are analyzed and compared. The ability of employers to use post-hoc discovery of criminal convictions to justify prior adverse employment actions is discussed, drawing examples from Wisconsin, Minnesota, and Oklahoma. Recently promulgated city and county ordinances prohibiting discrimination are described, as is the limited scope of protection available under existing federal law. The article concludes that existing protections are both inconsistent and in many cases insufficient, and suggests that existing federal laws be amended to bring those with criminal histories more directly within their scope of coverage.

Keywords: Employment Discrimination, Hiring, Firing, Adverse Employment Decision, Anti-Discrimination Legislation, Criminal Record, Employer, Employee, Applicant, Discovery of Criminal Record

JEL Classification: I28, J70, J71, J78, M51, K14, K31